Montana State Legislature

2011-2012 Energy and Telecommunications

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The Energy and Telecommunications Interim Committee (ETIC) has broad oversight over a range of energy and telecommunication-related topics in Montana. The committee conducts interim studies as assigned by the Legislative Council or selected by members and reviews the administrative rules proposed by the Department of Public Service Regulation (DPSR) and the Public Service Commission (PSC).

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Helena, Montana

Billings, Montana

 

This topic was suggested in response to ongoing efforts to improve Montana's one-call laws (Title 69, chapter 4, part 5). In Montana underground facility owners must belong to a one-call system and respond to requests to locate facilities. Excavators are liable for damage to facilities, and penalties are established in law. The Pipeline and Hazardous Materials Safety Administration (PHMSA) is developing new federal rules to encourage states to strengthen one- call laws. The Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006 authorized PHMSA to develop the new rules and to potentially take action if it is determined that a state's enforcement of pipeline safety regulations is inadequate. Montana's current one-call law fails to meet PHMSA standards, particularly in the areas of enforcement, according to a preliminary federal review. The new federal rules are expected in laste 2012 or early 2013 and will spell out federal expectations for state statutes. A large group of stakeholders met over the last two years to discuss options for improving Montana's one-call laws. The group provided regular updates to the ETIC

The ETIC dedicated .25 FTE to this topic. This study included panel discussions with stakeholders, a review of federal rules, a discussion of deficiencies in Montana's one-call law, and potential legislation to address any shortcomings in Montana's law. Because the federal rules were not final by the conclusion of the 2011-2012 interim, the ETIC did not pursue related legislation. The committee generated a report and requested stakeholders continue to monitor the issue.

Related Links and Study Materials

his topic was suggested in an effort to analyze the statutes that establish the organization and structure of the Public Service Commission. This would include options for replacing the five-member elected commission with an appointed commission, terms of office, vacancies, and use of districts. In 2003 Governor Martz appointed an Energy Consumer Protection Task Force. The task force examined the PSC's organizational structure and the PSC's overall authority. This study would reexamine the work completed in 2003.

The ETIC dedicated .05 FTE to this review. The committee reviewed the existing statutes that outline the organizational structure of the PSC and discussed options for transitioning to a new structure. The ETIC did not pursue related legislation.

Related Links and Study Materials

This topic was suggested in an effort to track a variety of issues related to the development of energy resources in Montana and to study options for reducing impediments to resource development. The ETIC dedicated .30 FTE to this work. Members hosted a variety of panel discussions on topics ranging from battery storage to hydraulic fracturing. Throughout the interim, the committtee also received updates on the:

During the interim, ETIC members organized site visits to a number of energy-related facilities and heard presentations by a number of developers and researchers to learn more about the generation of energy using different resources and technologies, the high-voltage transmission of electricity to bring electricity from power plants to end-use markets, and the distribution of electricity to end users. Many aspects of the ETIC's efforts in this area were discussed during tours of individual facilities and during meetings with representatives of the energy industry. A report was compiled outlining the ETIC's work in this area:

  • LC 0346 -- Rural Electric Cooperatives Legislation
  • LC 0345 -- Renewable Portfolio - Hydro Legislation
  • LC 0347 -- RPS Study Proposal

The Legislature, including the ETIC, plays a significant role in the administrative rulemaking process and is authorized to review administrative rules for compliance with the Montana Administrative Procedure Act, also known as MAPA. More information about the rule review process, the ETIC's role and responsibilities, objections to administrative rules, and rules currently proposed by the agency under the ETIC's purview is available below or by clicking on the links above.

Contact Todd Everts at teverts@mt.gov for more information on administrative rule review by the ETIC.

Proposed Rules

November 17, 2011  - Memo
September 16, 2011 - Proposed Rules

Administrative Rule Review

The Montana Legislature may authorize administrative agencies to implement and carry out legislative enactments through the adoption of administrative rules. An administrative rule is an agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures, or practice requirements of an agency. See 2-4-102(11), MCA. When this occurs, the legislature establishes law through the adoption of statutes and authorizes an agency to make specific rules or regulations to implement or interpret those statutes. Once adopted, administrative rules carry the full force and effect of law and are subject to judicial challenge.

Administrative agencies are required to follow certain procedures in adopting administrative rules. These procedures are set forth in the Montana Administrative Procedure Act (MAPA). The purpose of MAPA is to ensure that the public receives notice of agency rulemaking and is provided an opportunity for meaningful public participation. MAPA also establishes general uniformity for rulemaking across agencies and provides due process safeguards to the public and to those that will be regulated by the administrative rules.

Administrative rules are published in the Administrative Rules of Montana (ARM), which is updated twice a month by the Montana Administrative Register (MAR). The MAR contains rulemaking notices regarding proposed new, amended, or repealed rules. The MAR also contains notices of adopted rules, recently issued attorney general's opinions, and notices of vacancies on state boards. The ARM and MAR are maintained by the Secretary of State's office and may be accessed at the following website: http://www.mtrules.org/.

Role of the Energy and Telecommunications Interim Committee

The legislature, including the ETIC, plays a significant role in the administrative rulemaking process and is authorized to review administrative rules for compliance with MAPA. As part of this process, legal staff for the ETIC notifies the ETIC of proposed, amended, or repealed administrative rules and of any concerns regarding the rulemaking process.

The ETIC is responsible for reviewing administrative rules from the following agencies:

There are several avenues for ETIC involvement in the agency rulemaking process. Specifically, the ETIC may take any one or combination of the following actions:

  • Request an agency's rulemaking records for checking compliance with MAPA. 2-4-402(2)(a), MCA.
  • Prepare written recommendations for the adoption, amendment, or rejection of a rule and submit those recommendations to the agency proposing the rule and submit oral or written testimony at a rulemaking hearing. 2-4-402(2)(b), MCA.
  • Require that a rulemaking hearing be held in accordance with the provisions of 2-4-302 through 2-4-305, MCA. 2-4-402(2)(c), MCA.
  • Institute, intervene in, or otherwise participate in proceedings involving this chapter in the state and federal courts and administrative agencies. 2-4-402(2)(d), MCA.
  • Poll the legislature by mail to determine whether a proposed rule is consistent with the intent of the legislature. The results of the poll are admissible in any court proceeding involving the validity of the proposed or adopted rule. 2-4-403 and 2-4-404, MCA.
  • Require an economic impact statement relating to the adoption of a rule. 2-4-405, MCA.
  • Object to all or some portion of a proposed or adopted rule and delay the adoption of the rule for sixth months or delay the effective date of the rule until the day after final adjournment of the next legislative session. 2-4-305(9), 2-4-306(4)(c), and 2-4-406(4), MCA.

Objections to Administrative Rules

The ETIC may elect to object to a proposed administrative rule. If a majority of the members of the ETIC notify the chair that they object to a proposed administrative rule, the ETIC must notify the agency of the objection and that the ETIC intends to address the objection at the next ETIC meeting. Following notice of the objection, the rule may not be adopted until publication of the last issue of the register that is published before the 6-month period during which the adoption notice must be published. The ETIC may withdraw its objection and allow the adoption notice to be published.

If the ETIC meets and objects to all or some portion of a proposed rule before it is adopted because it considers the rule not to have been proposed or adopted in substantial compliance with 2-4-302, 2-4-303, and 2-4-306, MCA, the rule or portion of the rule objected to is not effective until the day after final adjournment of the next regular legislative session. The ETIC may withdraw its objection to the administrative rule or the rule may be changed to comply with ETIC's objections and concerns. However, the failure of the ETIC to object in any manner to the adoption, amendment, or repeal of a rule is inadmissible in court to prove the validity of any rule.

The significance of an objection to an administrative rule is that the ETIC may delay the effective date of the administrative rule for 6 months or until the adjournment of the next legislative session. In addition, following an objection the agency may not enforce or implement the proposed administrative rule in question until the new effective date. Finally, by objecting to an administrative rule, the ETIC may shift the burden to the agency in a court proceeding to prove that the rule or portion of the rule objected to by the ETIC substantially complies with the provisions of MAPA.

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